1. Decisions of the Federal Social Court of 23 July 2014 on social assistance (SGB XII)
1.1 – BSG, judgments of 23 July 2014 – B 8 SO 14/13 R –, – B 8 SO 31/12 R – and B 8 SO 12/13 R
More social assistance for disabled people
Social assistance for disabled adults living with their parents or in a shared apartment, according to standard needs level 1 (100%).
Source: Media Information No. 20/14: juris.bundessozialgericht.de
Note 1:
See also Federal Social Court (BSG) stops common social assistance cuts for disabled people – Blaufelder Law Firm: www.kanzlei-blaufelder.com
Note 2:
Affected individuals can now submit review applications (§ 44 SGB X). The social welfare offices must then generally pay the difference retroactively to January 1, 2013 (§ 116a SGB XII).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, decision of 01.07.2014 – L 11 AS 334/14 B PKH
Guiding principles (author):
The exclusion of benefits pursuant to Section 7 Paragraph 4a of the German Social Code, Book II (SGB II) in the case of unauthorized residence outside the local area also applies to benefit recipients who receive unemployment benefit II under the simplified conditions of Section 64 Paragraph 4 of the German Social Code, Book II (SGB II) in conjunction with Section 428 of the German Social Code, Book III (SGB III) (cf. Federal Social Court (BSG), judgment of May 16, 2012 – B 4 AS 166/11 R).
Source: socialcourtsability.de
2.2 – Bavarian State Social Court, decision of 10 July 2014 – L 7 AS 410/14 B ER
Legal Principles (Juris):
As of June 1, 2014, electronic documents can also be submitted to the Bavarian State Social Court. To replace the required written form, the electronic documents must be provided with a qualified electronic signature in accordance with Section 2 No. 3 of the Signature Act.
An email without a qualified electronic signature containing documents with a scanned signature of the complainant does not satisfy the written form requirement.
Source: socialcourtsability.de
2.3 – Bavarian State Social Court, decision of 02.07.2014 – L 16 AS 419/14 B ER
Due to an interim order – Provisional granting of unemployment benefit II for Polish nationals.
Guiding principles (Juris):
Even though benefits under the German Social Code, Book II (SGB II) are to be classified as social assistance benefits within the meaning of Article 24(2) of Directive 2004/38/EC, they are also benefits intended to facilitate access to the labor market (continuation of the Senate's judgment of 19 June 2013, L 16 AS 847/12).
The exclusion of benefits in Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) must therefore be interpreted in conformity with European law to mean that it must be examined separately in each case whether there is a connection to the domestic labor market.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Dortmund, decision of 26 May 2014 – S 35 AS 1758/14 ER
Reduction of unemployment benefit II – Necessity of issuing a cancellation notice – Cancellation notice required in case of sanctions – Failure to report
Guiding principle (author):
No reduction of Hartz IV benefits due to failure to report without revocation of the approval notice.
When reducing basic income support benefits due to breaches of obligations under Sections 31 and 31a of the German Social Code, Book II (SGB II), a revocation decision pursuant to Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) is still required if a legally binding benefit award was previously issued for the period in question. Section 31b Paragraph 1 Sentence 1 of the SGB II does not automatically lead to a reduction in unemployment benefit II, but merely provides a regulation for determining the start date of the reduction period.
There is also a ground for an injunction in the sense of particular urgency. While the 20% reduction in benefits is not yet life-threatening, it must be taken into account in favor of the applicant that the job center is wrongfully withholding benefits that have already been approved. The legal remedy of applying for an order suspending the effect of an appeal pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG) does not require a corresponding ground for an injunction in the sense of particular urgency.
Source: socialcourtsability.de
Note:
Similarly, the following decisions have recently been reached: LSG NSB, decision of 10 February 2014, L 7 AS 1058/13 B; Hessian LSG, decision of 3 December 2013 – L 9 AS 614/13 B ER; SG Kassel, judgment of 28 August 2013 – S 7 AS 439/13; SG Kassel, decision of 27 June 2013 – S 7 AS 121/13 ER; LSG NSB, decision of 17 June 2013 – L 7 AS 332/13 B ER; and, for a detailed discussion of this controversial legal issue, Bavarian LSG, decision of 17 June 2013 – L 11 AS 306/13 B ER. Contrary opinion: SG Detmold, judgment of 17 October 2013 – S 18 AS 1095/12, Lauterbach in: Gagel, SGB II, as of 1/2012, § 31b para. 2; Groth/Luik/Siebel-Hufmann, Das neue Grundsicherungsrecht, 2011, para. 421; SG Trier, 14 December 2011 – S 4 AS 449/11 ER.
3.2 – Social Court Dortmund, decision of 13 June 2014 – S 32 AS 1173/14 ER
No sanction without a revocation notice. The approval notice must be amended in accordance with Section 48 of the German Social Code, Book X (SGB X).
Even under the current legal situation in force since April 1, 2011, a sanction cannot be the sole subject of a dispute (cf. Hessian State Social Court, decision of December 3, 2013 – L 9 AS 614/13 B ER; Social Court Detmold, judgment of October 17, 2013 – S 18 AS 1095/12 – (appeal allowed); contra Bavarian State Social Court, judgment of January 30, 2014 – L 7 AS 85/13 – (appeal on points of law allowed)).
Guiding principles (author):
A sanction notice pursuant to Sections 31 et seq. of the German Social Code, Book II (SGB II) is ineffective if benefits under the SGB II have already been granted for the sanction period – as in the aforementioned months – and the corresponding grant notice(s) is/are not revoked to the extent of the reduction pursuant to Section 48 of the German Social Code, Book X (SGB X).
The entitlement to benefits and the entitlement to payment are generally considered a single unit (Social Court Dortmund, decision of May 26, 2014 – S 35 AS 1758/14 ER).
The need for legal protection of an applicant who, in preliminary proceedings, seeks an order suspending the effect of an action against a sanction notice, does not lapse simply because the period for which he receives reduced or no standard benefit due to a breach of duty under the sanction notice has expired.
Source: socialcourtsability.de
Note:
This remains valid even after the amendment to the regulation (now Section 31b Paragraph 1 Sentence 1 of the German Social Code, Book II) which came into force on April 1, 2011 (controversial; see, for example, Social Court Dortmund, decision of May 26, 2014 – S 35 AS 1758/14 ER – not yet published; Higher Social Court of Lower Saxony-Bremen, decision of February 10, 2014 – L 7 AS 1058/13 B – juris; Higher Social Court of Hesse, decision of December 3, 2013 – L 9 AS 614/13 B ER; very detailed discussion in Social Court Kassel, judgment of August 28, 2013 – S 7 AS 439/13 – (appeal allowed); Social Court Kassel, decision of June 27, 2013 – S 7 AS 121/13 ER; Higher Social Court of Lower Saxony-Bremen). Decision of June 17, 2013 – L 7 AS 332/13 B ER; S. Knickrehm/Hahn in: Eicher, SGB II, 3rd edition 2013, § 31b para. 7 with further references; contra: Bavarian State Social Court, judgment of January 30, 2014 – L 7 AS 85/13 (appeal on points of law allowed); Social Court Detmold, judgment of October 17, 2013 – S 18 AS 1095/12 (appeal allowed); Social Court Trier, decision of December 14, 2011 – S 4 AS 449/11 ER; a decision of the Federal Social Court on this issue is – as far as can be seen – not yet available; a decision of the State Social Court of North Rhine-Westphalia (NRW) is not yet available to the Chamber, with the exception of the decision of March 4, 2013 – L 19 AS 1688/12 B, also unknown).
3.3 – Social Court Neuruppin, decision of 23 July 2014 – S 26 AS 1464/14 ER
Guiding principles (author):
There is no ground for an order in the case of the total amount of EUR 66.00 per month requested by the applicants – which corresponds to approximately nine percent of the standard benefit of EUR 716.00 added to the applicants' total benefit.
In principle, 80 percent of the standard benefit rate is still sufficient to meet current needs and avert hardship (for a reduction of up to 30 percent: Berlin-Brandenburg State Social Court, decision of February 2, 2006, – L 14 B 1157/05 AS ER; for a reduction of 20 percent: Baden-Württemberg State Social Court, decision of January 29, 2007, – L 7 SO 5672/06 ER-B; see also Berlin-Brandenburg State Social Court, decision of October 24, 2008 – L 29 B 1844/08 AS ER).
Source: socialcourtsability.de
3.4 – Social Court Cottbus, Judgment of 13 February 2012 – S 14 AS 4945/11
Unemployment benefit II – Constitutionality of the standard needs assessment – dignified minimum standard of living – Social assistance law
Principle (Juris)
1.) On the question of the constitutionality of basic income support benefits.
2.) Determination of the socio-cultural minimum in ALG II based on the regulations of the Federal Social Assistance Act.
Source: socialcourtsability.de
3.5 – SG Chemnitz, Decision of 18 July 2014 – S 20 AS 1442/14 ER
Suspensive effect against an unlawful ban from the premises due to an error of discretion.
Read more: www.ali-gegenwind.de
4. Decisions of the social courts on social assistance (SGB X II)
4.1 – Social Court Detmold, Judgment of 13 May 2014 – S 8 SO 173/12 – legally binding
The house property does not constitute protected assets within the meaning of Section 90 Paragraph 2 No. 8 Sentence 2 of the German Social Code, Book XII (SGB XII) – benefits for care under the SGB XII are provided as a loan.
Guiding Principles (Author):
A suitable residential property is not exempt from development because of its value and yield, but because of its direct connection to housing. The existing family home should be protected as an essential element of a dignified existence, not the assets as such. The property is protected as a dwelling for fulfilling the basic need for housing and as the spatial center of one's life.
This, however, presupposes that a dignified existence is still guaranteed in the property. The court does not disregard the commendable diversity of living arrangements found among the population and also respects the widespread desire to remain in their long-occupied property and familiar surroundings, a desire ultimately protected by Section 90 Paragraph 2 No. 8 of the German Social Code, Book XII (SGB XII). However, an absolute limit is reached where, according to reasonable standards, remaining in the property is no longer justifiable, particularly if the condition of the property poses concrete and significant health risks.
In particular, the significant structural defects of the building, including various moisture damages and ultimately also algae and mold infestation in the basement, lead the chamber to conclude that dignified living in the property is no longer guaranteed.
Source: socialcourtsability.de
5. July 24, 2014: In principle, no reimbursement of costs due to "socially unacceptable behavior" in cases of basic income support under Chapter 4 of the German
(SGB XII). The Second Senate of the Higher Social Court of Stuttgart (LSG Stuttgart) has confirmed in a court ruling our view that reimbursement of costs under Section 103 of the SGB XII (culpable creation of the eligibility requirements for social assistance) cannot be demanded in cases of basic income support under Chapter 4 of the SGB XII. The social welfare agency had initially granted basic income support under Chapter 4 of the SGB XII, but then demanded reimbursement of costs because the recipient had repaid a loan to family members shortly before receiving benefits. The court of first instance had upheld the decision of the social welfare office (Social Court of Freiburg, September 17, 2013, S 12 SO 3610/12). The Higher Social Court has now indicated that, according to the Senate's preliminary legal opinion, reimbursement of costs under Section 103 of the SGB XII is not possible in cases of basic income support under Chapter 4. The claim under the German Social Code, Book XII (SGB XII) is likely excluded due to the overriding provision of Section 41 Paragraph 4 of the SGB XII (LSG Stuttgart, L 2 SO 4608/13). The social welfare office subsequently withdrew its cost reimbursement order.
Social law in Freiburg – Hartz IV – Social assistance – Health insurance – www.srif.de
6. Comment by Dr. Andy Groth, RiLSG on BSG – B 4 AS 12/13 R: Cello for school music lessons does not constitute a need for participation.
Guiding principles:
Rental fees for a musical instrument were, according to the legal situation until 31.7.2013, not in principle a need for participation in lessons in artistic subjects within the meaning of the education and participation package of the SGB II.
The need for compulsory school music lessons in the form of rental fees for a musical instrument is not to be considered a need for instruction in artistic subjects within the meaning of the Education and Participation Package of the German Social Code, Book II (SGB II), even after July 31, 2013.
Source: Juris: www.juris.de
7. Matters pursuant to Section 6a BKGG / Accommodation / Property, Repayment
Lower Saxony-Bremen State Social Court, Judgment of July 9, 2014 – L 13 BK 20/09:
In determining whether the requirements for entitlement to child supplement under Section 6a of the Federal Child Benefit Act (BKGG) are met, the provisions of the German Social Code, Book II (SGB II) and the relevant case law must generally be applied – particularly with regard to the eligibility requirement that the child supplement must prevent
the need for assistance under Section 9 SGB II. This also applies, in light of the Federal Social Court's (BSG) ruling of March 14, 2012 – B 14 KG 1/11 R, which stipulates that actual housing costs must be considered when examining eligibility for child supplement, to the question of whether mortgage payments or a maintenance allowance for homeowners are to be considered housing costs.
Source: www.rechtsprechung.niedersachsen.de
8. No entitlement to more money for cable television
The Halle State Social Court has ruled that recipients of Hartz IV benefits will not receive additional money for cable television. However, exceptions are possible.
Read more: www.mz-web.de
Note 1:
See the full text of the judgment of the LSG Halle of 24.06.2014, file number: L 4 AS 98/1: Tacheles case law ticker week 29/2014 – point 2.10 – Costs for a cable connection can only be allocated to accommodation costs if the corresponding payment obligation has been established in the tenancy agreement.
Note 2:
See also State Social Court – Press release no.: 007/2014 – (LSG LSA) Cable fee not covered: www.presse.sachsen-anhalt.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
